Terms of Service - DIFM

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY BEFORE SIGNING UP FOR HOSTPAPA’S MANAGED DO-IT-FOR-ME WEB DESIGN SERVICE.

INTRODUCTION

Hostpapa, Inc., (hereinafter referred to as “HostPapa” or the “Company”) will build a Website, ("Website" or “Do It For Me” or “Web Design Services” or “Services”) for the Customer ("Customer" or “You”) as identified and described in the “Do It For Me” order process for web design services.

These Terms of Service (“TOS”) are also subject to the General Terms of Service for HostPapa services located at www.hostpapa.ca/terms. The Customer acknowledges and accepts that they are bound by these TOS which are hereby incorporated and made an integral part of the Agreement. In the event of any conflict with the General Terms of Service, these TOS shall prevail.

DEFINITIONS

Add-Ons: Additional services purchased by the customer to add further components or functionality to the Website.

Business Day: Refers to a day of the week, for clarity Monday to Friday

Content: Refers to the written copy/text included on the Website; the Content can be Customer Supplied Content or Content that is provided by the Company.

Content Library: A collection of copy/text, images and pictures that is maintained and managed by the Company and may be used in the construction of the Customer’s Website. Items contained within the Content Library are the property of the Company, and the Company retains all rights to said items.

Customer Supplied Content: Refers to any and all Material that is supplied to the Company by the Customer for the production of the Website.

Domain Name: Is the domain name registered or selected by the Customer for the Website.

Fees: All monies payable to Company by Customer in order to provide Services to Customer, as agreed upon in the Plan. Fees may include but are not limited to, fees for the provision of Services, setup fees, and transfer fees.

General Terms: The general terms and conditions of the Company, as listed on the Company’s website(s).

Material: This includes but is not limited to the copy/text, images, graphic designs or trademarks used in the production of the website.

Plan: The particular “Do It For Me” package, including specifications and term, as purchased by the Customer.

Services: Services provided for the “Do It For Me” website design services which are displayed and may be amended from time to time on the Company’s website.

Templates: Refers to the templates that are available for use in designing the Website. Templates are controlled and maintained by the Company and their availability for use in designing the Customer’s Website is based on the Plan purchased by the Customer.

Term: The complete duration that the Services are provided to the Customer by the Company.

Transfer Fees: Monies payable to Company by Customer to transfer Intellectual Property rights, as described in Ownership Rights Transfer clause.

Website: The end result of the Company’s efforts to perform the services for the Customer. A Website will be published according to the specifications of the Customer.

DESCRIPTION OF SERVICES

Services includes the initial building, customisation and modification of one website that is custom provided to You. The Company warrants that it will provide Services with reasonable care and skill and will deliver the Service to the Customer where possible uninterrupted or error free. Customer acknowledges that all communication between the Customer and the Company may be recorded, for both business purposes and to record and monitor all responses to requests.

Services will include the following:

A Website created with a template managed and controlled by the Company only; the templates available are specific to the plan purchased by the Customer, and will be selected from an existing design template available from the Company template library;

Content, including populating and modifying content either provided by You or provided by the Company, that will be approved by You in advance of design layout;

Design layout, including photos and images either provided by You or provided by the Company, that will be approved by You in advance of publishing the Website;

Website hosting;

Ongoing support, including revisions of the content as requested by the customer, in Website updating and maintenance.

WEBSITE PRODUCTION PROCESS:

The Company shall build the Website in accordance with the instructions given to and approved in advance by the Customer. The Company will provide the Customer with an opportunity to review the Website before publication, and Customer provide Company with any revision requests and/or to approve the Website for publication. If the Website is approved, or we receive no response from you within five (5) business days of our request, the Website will be published on the Internet to the domain name you have provided.

Specifications for your Website will be determined by the selected Plan and where certain Services are made available. Completion of the build of the Website in a timely manner depends upon your responsiveness to any of our requests, and where applicable, provision of timely and complete feedback or approvals. We are not responsible for any delays in provisioning the Service which occur as a result of your failure to respond as requested or required. If you have any objections or concerns to continuing with the build, changes or modifications of the Website, or to the publication of the approved Website, you must notify us via your Customer dashboard or assigned email address in a timely manner and specify your change requests or reasons for your objections or resistance (such to be reasonable, and genuine issues raised in good faith). We will investigate those reasons, and attempt to resolve your issues and concerns. If a resolution is unable to be agreed within seven (7) calendar days from the day on which we became aware of your objections, then either party may cancel the Service.

You will also respond promptly to requests necessary for the project to commence and proceed in a timely manner. During any stage of the design process, a designer or assigned producer will be working with you to gather information to start, request Your feedback to revise, or for Your approval to complete Your Website. If a response is not received from You for more than sixty (60) days, the design project is considered "abandoned" and payment is surrendered in full. HostPapa reserves the right to charge you a fee for repeated missed consultations, repeated rescheduling of consultations related to any Website design work, and/or the reinstatement of your Website design to an active status if no response has been received from you for 30 days, following the timeline of activities provided to you by HostPapa, if any.

The Customer accepts and grants the Company to have full physical access and control over the Website during the Term. The Company shall only amend the website as far as they are permitted to do so and shall only do so once the approval is received by the Company from the Customer. The Customer’s access to the website will be limited to prevent any data loss or mistakes to the Website.

If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, HostPapa has the right to suspend or terminate your account and refuse any and all current or future use of the Services. You also acknowledge that HostPapa does not pre-screen content, images and inventory.

RIGHTS AND LICENSES:

The Customer hereby grants to HostPapa and its vendors and subcontractors all necessary rights and licenses with respect to the Customer's Website or logo created by HostPapa in order to carry out its obligations and to make a reasonable number of archival or back-up copies of this information as deemed necessary by HostPapa to perform Services. The Customer acknowledges that it is not the responsibility of HostPapa to create or store backup files for any of the data used in the website. See Backup clause for clarification.

DOMAIN NAME:

The Customer shall be granted rights to the Domain Name that the Customer selects for use with the Website (the “Domain Name”), however HostPapa makes no representations whatsoever with respect to the rights to any Domain Name that Customer provides for use with the Services. HostPapa can also not guarantee availability of any Domain Name. The Customer will further be responsible for all claims related to their use of the Domain Name. Customer shall own and have all rights and title to the Domain Name that the Company procures, purchases or transfers on behalf of the Customer, as long as all fees and payments for said Domain Name are paid in full by the Customer to the Company for these Domain Name Services. The Customer acknowledges that it is their responsibility to pay all fees in full, and failure to do so will result in the forfeiture of rights to said Domain Name. The Customer can elect to transfer the Domain Name at any time to another provider as long as payment is made in full for all fees related to said Domain Name.

INTELLECTUAL PROPERTY RIGHTS:

The Company acknowledges that the legal owner of the Website is the Customer. However, the Customer acknowledges that the Company shall have the full power and control over the Website during the Term. The Customer also acknowledges that ownership of certain elements of the Website including, but not limited to: the HTML coding, scripting, copyrights of content and material provided by the Company, images, formatting, content developed by HostPapa, and all other intellectual property rights, shall remain the exclusive property of HostPapa. HostPapa grants to Customer a non-exclusive, revocable license to use these design elements and related applications, provided that You are current with respect to the Service fees and not otherwise in breach of this Agreement.

All content provided by the Customer to HostPapa for inclusion on the Website shall remain the sole and exclusive property of the Customer. The Customer acknowledges that all Content is owned by Customer or that Customer has a legal right to such Content and that such Content and the use thereof does not violate the HostPapa acceptable use policies as defined in HostPapa’s General Terms in any way. The content, if supplied by the Customer (i.e. Customer Supplied Content), shall belong to the Customer and may be used by the Customer in the event of the Customer terminating the agreement.

All images provided by Company belong to the Company and cannot be used for any other purpose including, but not limited to, business cards, blogs, and social media sites. In the event that the Customer terminates the Agreement, the Customer will not be entitled to use the images provided by the Company on the Website or for any other purpose.

The Company may elect at its sole discretion to eliminate the Website content that it designed and developed if:

Customer elects to transfer their Domain Name to another provider and does not provide the Company with at least 30 days written notice of their intention to continue with Services or replace the domain name with another alternative.

Customer fails to renew the domain name before it is due to expire.

Customer is suspended or terminated for any reason as outlined in this Agreement.

YOUR OBLIGATIONS:

In order for HostPapa to perform the Services in accordance with this Agreement, you shall be responsible for the following:

Providing HostPapa with all information that is requested by HostPapa, including but not limited to: Customer Supplied Content including any website copy and text, and any custom images in connection with the production of your Website;

Supplying HostPapa with any Customer Supplied Content for your Website that you would like published. All Customer Supplied Content must be submitted to the Company as outlined in our service instructions. If you do not provide adequate Customer Supplied Content, we may proceed to build the Website utilizing category specific pre-produced Content, photos, and images from our Content Library, which may be customized based on the details provided by You (e.g. contact details, description of your business and other relevant information). All Customer Supplied Content provided by the Customer to the Company must be original Material. The Customer has all relevant lawful permissions and/or valid licences to use the Customer Supplied Content and is not in any breach of any intellectual property or other laws. The Customer acknowledges that it is solely their responsibility to ensure that they have the rights to use any Customer Supplied Content provided to the Company and it is not for the Company to check whether or not the Customer Supplied Content is in breach of any intellectual property or other laws. The Customer acknowledges that the Company reserves the right to decline to use or remove any Customer Supplied Content which they know or suspect may be infringing any intellectual property or other laws;

Ensuring that all Content on your Website does not infringe or violate the intellectual property rights of others, including but not limited to, trademarks, tradenames, copyrights, patents, domain registration, trade secrets, privacy rights or any other rights and that You will also not violate the rights of others including rights of privacy, contractual rights and obligations, or property rights;

By using our Services, you represent and warrant that any name or word submitted to be used as all or part of the URL associated with your Website does not infringe any trademark or domain name rights of any third party;

Ensuring that the information and Customer Supplied Content you provide to HostPapa as it relates to the Services and your Website are accurate;

Having internet connectivity to send and receive email, or to connect to Your Website

Not sharing visitor’s personal information gathered on your site with any third party without first obtaining the visitor's consent;

Supplying images to the Company in the format specified by the Company at the time;

Providing copy for the Website; where necessary and required as part of the Services, HostPapa will involve a professional copywriter of the Company;

Providing necessary proofreading to review the material for your website. The Customer acknowledges that the Company is not under any obligation to provide changes by way of proofreading, and the Company is certainly not under a duty to provide any editing to copy provided by the Customer or our copywriters.

Evaluating and bearing all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any content created by HostPapa or submitted to HostPapa. The Company shall have the right to remove any Content that violates the HostPapa Terms.

Paying all required fees associated with the website, as determined by the Plan selected at the time of purchase.

Operating the Website legally. The Company reserves the right to remove the Website and Domain Name in its entirety if it has reason to believe that the website may be operating illegally.

Using the Services in a manner which does not interfere with or disrupt other network users, services, or equipment, and HostPapa reserves the right to terminate or suspend the Services without notice if such interference is determined by HostPapa to exist. Such interference or disruption includes, but is not limited to:

Wide-scale distribution of messages, including bulk email or unsolicited spam email, or widescale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums;

Propagation of computer malware, worms or viruses;

Use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.

Unauthorized or Inappropriate Use.

DESIGN TOOLS:

HostPapa will assist Customer using HostPapa Website Builder or suitable website building tool as selected by HostPapa at HostPapa's discretion. These tools may utilize third party applications. Certain Website building tools the Company uses for the Services may utilize the Wordpress application and default templates which are subject to terms and conditions of the GNU General Public License which can be found at http://www.gnu.org/licenses/old-licenses/gpl-2.0.html. Additionally, we may use open source themes, addon modules or plugins to accomplish functionality requests with Wordpress. We cannot guarantee these plugins will be supported in all browsers or that they will continue to function if you update the Wordpress version without our assistance.

BACKUP

Customer agrees that they are solely responsible for the back-up of any data, Websites or information (including without limitation email files, databases, hosted files etc.) which may be replaced pursuant to the provision of the Services (including without limitation as a result of the publishing of your Website). HostPapa is not responsible for archiving documents, graphic work, physical goods or web pages created for the Customer, or documents, graphic work, physical goods or files which are mailed, email or faxed to HostPapa. HostPapa is not responsible for returning any files, documents or physical goods emailed, faxed or mailed to us.

ECOMMERCE STORE AND PAYMENT GATEWAYS:

Should the Customer’s Plan include an eCommerce store, the Customer acknowledges that each item added to the store by the Company counts towards the product allowance, including different variations of the same product.

If the Plan includes compatibility for a payment gateway system, You agree and acknowledge that:

it is Your responsibility to select, setup and manage a Gateway which is compatible with HostPapa platforms;

any fees or obligations concerning the Gateway is solely Your responsibility; and

HostPapa will not be responsible for any delays or impacts to the Service caused by the Gateway.

OWNERSHIP RIGHTS TRANSFER:

If at anytime Customer terminates this agreement and subsequently elects to obtain the Intellectual Property Rights for the Material owned by Company as outlined in this agreement, including but not limited to:

it is Your responsibility to select, setup and manage a Gateway which is compatible with HostPapa platforms;

any fees or obligations concerning the Gateway is solely Your responsibility; and

HostPapa will not be responsible for any delays or impacts to the Service caused by the Gateway.

Should the Customer desire to obtain ownership rights to the Website upon termination of Services, the Customer must obtain express written permission from HostPapa and the Customer shall further remit a fee to HostPapa for the assignment of these rights to the Material. To obtain the intellectual property rights customer must agree to the following:

termination of this agreement in accordance with the Terms

be in good standing and not in default for all fees associated with the Plan and Services

provide proper and sufficient written notice, as detailed in the Term and Termination clause, of intention to terminate that is confirmed and accepted by Company

provide proper instructions to Company to properly transfer the Material, along with Intellectual Property rights to this Material

If all of the conditions are met, and you have received in writing receipt from Company of acceptance of the above conditions, Company will transfer all Rights and Title to the material to Customer.

Customer unconditionally accepts they have no rights to Material with the exception of Customer Supplied Content without payment in full of said transfer fees in accordance with this agreement. Customer understands that they will be in violation of International Copyright and intellectual property laws if they knowingly or unknowingly copy, backup, manipulate, retain or repurpose the Material without the express written consent of the Company, and will be held liable for use of this Material.

This assignment to Customer of ownership rights to the Material shall be limited to the actual portions of the Website visible on the Internet and its underlying HTML coding as developed specifically for Customer, and shall be sent to Customer at the discretion of Company via electronic file or compact disc within thirty (30) days of remitting Transfer Fee payment, but this assignment shall not include any rights to HostPapa's software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to HostPapa's products or services, which shall remain the sole and exclusive property of HostPapa and its respective suppliers, affiliates, partners, and/or licensors. For all images that are part of the Website and assigned to Customer hereunder, Customer is granted permission to only use those images in the manner in which it is provided to Customer by HostPapa (i.e. embedded in the Website) and no other use of the images is permitted whatsoever. Moreover, upon assignment HostPapa does not warrant the portability or functionality of the Website in any way to or on any platform, hosting or otherwise, that is not provided by HostPapa.

FEES AND REFUNDS:

The Services shall be charged in accordance with the fees set by the Company, as set out in each Plan and outlined in the Order Summary or Invoice provided to the Customer upon signup.

Customers may be required to pay a setup fee upon purchase of Service. The setup fee is subject to the Plan purchased and all setup fees are not refundable.

All fees are payable at time of invoice.

Fees for the Services selected by the Customer will be on a pre-paid basis, in advance of each billing cycle, for the term as agreed upon in the Plan at the time of purchase.

The Customer accepts that the fees for the Services are subject to a monthly or annual contract Term.

These fees may vary from time to time and are published on the Company’s website. We reserve the right to modify or change the fees without prior notice to the Customer.

Non-payment of fees will result in suspension and/or termination of the account, with the subsequent loss of data.

Refunds are only available during the Guarantee Period, and are not applicable to domain registration fees or setup fees. For clarity, domain registration fees and setup fees are not refundable even if customer cancels during defined Guarantee Period.

Refunds, if applicable, will be made either to the credit card or PayPal account used in the original transaction.

TERM AND TERMINATION:

The Customer is required to provide the Company with a minimum of 30 (thirty) days written notice of their intention to cancel the Services. The Customer accepts that any cancellation notice that is served after the Guarantee Period is subject to Customer paying the remaining balance due under this Agreement for the remainder of the Term. At the end of each term, the Services shall remain active and automatically renew on a monthly (or annual) basis, unless the Customer expressly provides the Company with at least 30 (thirty) days written notice using the cancellation form provided and confirmed by Company on the Company website.

HostPapa reserves the right to amend its Services offerings and to add, delete, suspend or modify the terms and conditions of such Services, at any time and from time to time. HostPapa reserves the right to deny, terminate, or suspend Services without notice if, in HostPapa' sole discretion, the Services are used by Customer in a manner that violates or may violate the following standards or the acceptable use policies located in its General Terms.

HostPapa also reserves the right to reject, alter, modify, or remove your Website, Website’s Domain Name, URL address, or any Website Content or Customer Supplied Content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which HostPapa in its sole discretion deems to be in violation of its acceptable use policies including but not limited to, any of the following reasons:

an infringement on or a mechanism designed to facilitate the infringement of a proprietary interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right;

pornographic or obscene material is placed on the Website, or the Website promotes potential illegal activity;

the Website is altered, manipulated, adjusted in any fashion by the user that would be deemed unacceptable by HostPapa;

the Website promotes hate, violence, terrorism or any other activity that may infringe upon the rights of others;

the Website promotes or distributes malware, viruses or any other software code that may impact the rights of others.

HostPapa reserves the right to immediately suspend or terminate any Website or transmission that violates this policy, without prior notice. In the event of such termination, the Customer agrees that the unused portion of any fees the Customer may have paid for Services rendered to the Customer by HostPapa are an appropriate recompense to HostPapa for the time required to respond to and address issues created by your illegal or obscene site/content, and the Customer agrees not to seek recovery of those fees. If termination occurs outside the Guarantee Period, Customer agrees to pay all fees for the remaining Term as specified in the Plan. Further, HostPapa will actively assist and cooperate with law enforcement agencies and government authorities when served proper notice by such agencies in collecting and tendering information about the Customer, Your Website, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.

Furthermore, the Company reserves the right to terminate or suspend the Customer’s Services at any time if:

There is a violation of the Company’s acceptable use policies as defined in its General Terms.

The Customer fails to make payments within seven (7) calendar days of the date of the invoice for Services. The Company shall notify the Customer in advance via email if the Services are suspended or terminated.

The Domain Name associated with the service is transferred from the Company’s account with or without notice to another provider. Exception would be if the Customer elected to replace the domain name associated with the Services with an alternative Domain Name.

The Customer fails to renew or pay for the Domain Name.

Upon termination, HostPapa will eliminate all Material including Customer Supplied Material, domain name information, images, HTML coding, etc. no later than thirty (30) days following the termination of this agreement. This includes but is not limited to all backup files and stored copies of this Material. HostPapa reserves the right to eliminate this Material from its servers at anytime, especially if it is determined there is a material risk to others located on the server or the performance of the server will be impacted by the Material residing on the server. At no time will Company be deemed liable for the deletion of Material from the servers and Customer accepts the responsibility to backup all Customer Supplied Material to their local drives in the event their Material is eliminated from the server

GUARANTEE PERIOD:

HostPapa offers a no risk, money-back guarantee period of thirty (30) days from the order date. During this Guarantee Period, the Customer can cancel their Services and be refunded the fees paid, less any applicable non-refundable Domain Name registration fee and non-refundable setup fee. The Customer must cancel in writing to the Company using the cancellation form provided and confirmed by Company on the Company website no later than thirty (30) days from their order date. Cancellations following the first thirty (30) days will be subject to the termination criteria as outlined in Term and Termination.

PROTECTION OF CONFIDENTIAL INFORMATION:

You consent to information contained within your HostPapa account to be shared for the purposes of the Services with Company-approved third-party agencies, partners, professional advisors and affiliates located in various jurisdictions who have agreed in writing to keep this information confidential. This information shall possibly contain such information as Your name, address, telephone and fax numbers, Your company name, email addresses, domain name registration information, and Material to be used to deliver Services. Payment and billing records will be maintained in the strictest of confidence and in accordance with all applicable legislation and regulations.

LIMITATION OF LIABILITY:

The Company will not be liable or accountable to the Customer or any third party for any direct or indirect costs incurred, loss of earnings or compensation claims sought by the Customer or any third party. Furthermore, the Company shall provide to the Customer the estimated time for commencing the design and development on the Website; however, the Company may not be able to provide the Customer with the exact date for completion due to the nature of the project.

The Company shall not accept any liability for any actions, work, errors, and technical errors or otherwise made by the Customer, its agents, third parties or otherwise, on or to the website, once full control and access of the website has been transferred to the Customer at their formal request as per the Ownership Rights Transfer clause.

Customer also accepts that the Company will not be held liable for any failure to carry out the Services for reasons beyond the control of the Company, these include but are not limited to: acts of God, acts of any governmental or similar authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of the Company or the Customer, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party's workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.

INDEMNIFICATION:

You agree to defend, indemnify, and hold harmless HostPapa and each of its officers, directors, employees, agents, affiliates, co-branders or other partners, and employees of any of the foregoing, from, against, and in respect of:

any and all losses, damages or deficiencies resulting from any third party claim in connection with your website (including, but not limited to, website content) or the URL;

all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses claims brought against the Company for any intellectual property infringement due to any Material provided for publishing by the Customer.

MARKETING EXAMPLES:

The Customer grants the Company a worldwide, perpetual, and royalty-free license to display Your Website on Our online properties as an example of the design work that HostPapa is able to provide for its customers.

JURISDICTION:

This Agreement will be governed by the laws of Canada and both parties submit to the exclusive jurisdiction of the courts of Ontario, and more specifically Burlington, Ontario, Canada courts in the event of any claim or dispute in connection with the Agreement or these Terms. The Company does not accept any liability for the content if they infringe any other state/country laws.